Consumer groups back cable company in networked DVR spat

Cablevision ran into trouble with content owners when it rolled out a "remote …

The EFF, Public Knowledge, and the Center for Democracy & Technology don't often find themselves arguing on behalf of of large cable companies, but the three groups recently joined forces to defend Cablevision's networked DVR.

The amicus brief, filed with the Second Circuit Court of Appeals on Friday, found the pro-consumer groups arguing that Cablevision's remote-storage digital video recorder should be legal and that Hollywood is attempting to quash legitimate innovation. At issue is a Cablevision system that lets customers record shows of their choice and play them back on demand, much like TiVo or any other DVR. In this case, though, customers need not own a piece of hardware; all storage and processing is done on the backend. Cablevision has also refrained from taking the next logical step, which would be making all shows available at all times. This would be much dicier from a legal perspective, so the company contented itself with replicating the functionality of existing (and legal) products, hoping not to get sued.

It didn't work. Cablevision lost the first round of the case brought by CBS, Universal, NBC, Fox, and others and is currently appealing the decision. One of the main arguments in favor of the technology is that the end result is legal; the tech behind the scenes just works in a new way. "The Supreme Court has already ruled that consumers have a fair use right to time-shift TV shows," said Fred von Lohmann, EFF senior intellectual property attorney. "It should not make a difference whether the copies are stored inside their set-top boxes or back at Cablevision headquarters."

The amicus brief makes two basic arguments in favor of Cablevision. First, the company cannot be liable for direct infringement because the DVR system "carries out user commands on a fully automated basis, with no volitional activity by any Cablevision employee." In other words, the company just set up a tool, and if a user breaks the law with it, he or she is responsible. Cablevision could still have "secondary liability" for setting up such a system in the first place, but the plaintiffs did not make that accusation (apparently fearing that the famous Betamax case would clear Cablevision from this type of liability). According to the brief, then, Cablevision should be free from direct or secondary liability.

The content owners argue that, by storing and showing the video itself, Cablevision is essentially "rebroadcasting" content in violation of its licenses. Even though the end result to the consumer is the same, the content owners believe that this particular network architecture is illegal.

Although the case appears to focus on an interesting but highly specific technology, the CDT's David Sohn worries that it could set a much broader precedent. "In terms of legal precedent, though," he said, "it seems to me that the main risk is that the decision could be read to narrow significantly the applicability of the pro-innovation rule announced in the 1984 Sony case regarding the VCR." In addition, a final ruling against Cablevision could cast a pall over many types of remote computing resources. The EFF thinks that Amazon's EC2, Google Apps, and Apple's .Mac, could all become liable for their users' actions under such a ruling.